Opinion
XXXXX
01-19-2017
In the Matter of a Proceeding Under Article 4 of the Family Court Act Edward J., PETITIONER, v. Karen J., RESPONDENT.
Edward J., Petitioner, Pro Se Karen J., Respondent, Pro Se Katie E. Woodruff, Esq., Attorney for the Child
Edward J., Petitioner, Pro Se Karen J., Respondent, Pro Se Katie E. Woodruff, Esq., Attorney for the Child Dandrea L. Ruhlmann, J.
Petitioner Edward J. (Father) filed a modification petition on June 13, 2016 seeking a decrease in the amount of child support he currently pays for the parties' three children: Jessica J. (DOB: —/—/1998), Jenna J. (DOB: —/—/2003) and Jason J. (DOB: —/—/2004) alleging that Karen J. (Mother) alienated his oldest child, Jessica, from him. This Court finds that Father has sustained his petition.
Procedural History:
The parties have a protracted history with family court as together they have made over 35 filings to date. Father filed the instant support modification petition on June 13, 2016, seeking a decrease in the amount of child support he currently pays for the children alleging Mother has alienated their oldest child Jessica J. (DOB: —/—/1998) against him. His petition was transferred from a support magistrate to this Court (see Fam Ct Act § 439[a]; see also Matter of Rubino v Morgan, 203 AD2d 698 [3d Dept 1994], appeal after remand, aff'd, 224 AD2d 903 [3d Dept 1996]; Matter of Mitchell v Remy, 24 AD3d 558 [2d Dept 2005]; Matter of Tornheim v Rube, 90 AD3d 1059 [2d Dept 2011] [jurisdiction of support magistrate]) to determine Mother's claim of alienation (see Matter of Coleman v Murphy, 89 AD3d 1500 [4th Dept 2001] [hearing required if prima facie case established for alienation]).
At trial the Court heard the testimony of Mother, Father, Lori M. and Jessica who is now 18 years old. Both Mother and Father appeared pro se. The Court also received the following exhibits into evidence: Petitioner's Exhibit 5 (Modification Order of Custody entered March 23, 2012), Petitioner's Exhibit 6 (Modification Order of Custody entered May 6, 2014), Petitioner's Exhibit 8 (Petitioner's 2008 Yearly Planner as redacted as to hearsay) and Petitioner's Exhibit 9 (Petitioner's 2010-2011 18-Month Planner as redacted as to hearsay).
Parental Alienation
A parent has a duty to support a child until the age of twenty-one (Fam Ct Act § 413[1][a]). Child support payments may be suspended where the "custodial parent, 'has unjustifiably frustrated the noncustodial parent's right of reasonable access'" (Matter of Colicci v Ruhm, 20 AD3d 891 [4th Dept 2005], quoting Matter of Smith v Bombard, 294 AD2d 673, 675 [3d Dept 2002], lv denied 98 NY2d 609 [2002]; see also Matter of Orange County Dept. of Social Servs. v Meehan, 252 AD2d 588 [2d Dept 1998]; and see DRL §241). To suspend payments Father must prove Mother is "either 'overtly or covertly undermining visitation'" (Matter of Smith v Smith, 283 AD2d 1000 [4th Dept 2001], quoting Matter of Catherine W. v Robert F., 116 Misc 2d 377, 378 [Fam Ct, Suffolk County 1982]) ( but cf. Matter of Carmen C v Tracy F., 52 Misc 3d 1213(A) [Fam Ct, Monroe County 2016]). Active interference or deliberate frustration by Mother of Father's court-ordered visitation schedule "can, under appropriate circumstances, warrant the suspension of future child support payments" (see Coleman, 89 AD3d 1500, 1501, quoting Matter of Hiross v Hiross, 224 AD2d 662, 663 [2d Dept 1996]). Child support payments should be suspended if Mother "intentionally 'orchestrated and encouraged the estrangement of [Father] from the child' or that she actively interfered with or deliberately frustrated his visitation rights" (see Matter of Curley v Klausen, 110 AD3d 1156, 1157 [3d Dept 2013], quoting Matter of Crouse v Crouse, 53 AD3d 750, 752 [3d Dept 2008]).
Testimony revealed both parents had longstanding relationships with other adults: Father with Lori M. and Mother with Augie F. Neither Ms. M. nor Mr. F. are held in high regard by the other parent. The Court sua sponte took judicial notice of a Custody Modification Order entered May 14, 2013 ordering, "none of the children shall sleep in the same bed with Auggie F." Mother's testimony was that Auggie was more of a father to her children than Father. Jessica, coached by Mother, testified she thinks of Mr. F., "Auggie" only as a stepfather.
Mother harbors a deep disdain of Father arising out of the break up of their marriage and an incident that occurred more than a decade ago when Jessica was eight years old. Jessica suffered an injury to her wrist. The extent and cause of the injury are disputed. Father tied Jessica's hands together while she and her siblings were in his work van, triggering the involvement of Monroe County Child Protective Services. Jessica had no recollection of playing cops and robbers as Father testified, but considered the incident fortuitous because after it "she got out of" visits. Mother maintains Father intentionally tied Jessica up, imprisoning her for hours.
When Jessica was young, Father brought over presents for Jessica and claims Mother refused them. Jessica testified she herself threw the gifts out the door. The last two visits Father had with Jessica included a visit in 2012 when she attended her brother Jason's birthday party and a visit in 2014 which a child protective worker enticed her to attend with a gift card. Father although uninvited attended Jessica's high school graduation ceremony, but was ignored.
Mother's consistent position is that it "is up to Jessica" whether to have a relationship with Father. She adamantly denied interfering with their relationship; according to Mother, Jessica is strong willed and refuses to visit. Under a 2008 Order (Referee Gordon) of which the Court takes sua sponte judicial notice states "Jessica shall be encouraged but not compelled, to visit with Father." This Court finds Mother by condoning Jessica's behaviors at an early age, including her refusal to receive gifts that Father brought her, sabotaged their father-daughter relationship. Jessica from ages 8 to 18 witnessed Mother's palpable disdain for Father, and Mother encouraged Jessica when she rebuffed any of Father's attempts to have a relationship with her.
The Court notes that Jessica's own testimony parroted her mother's position. Jessica unequivocally testified that she does not want a relationship with her Father. While Jessica also testified that Father frequently hit her and her siblings, when pushed she acknowledged she never witnessed nor experienced the same. All witnesses agreed that counseling between Jessica and Father was unsuccessful, having been attempted over several years with different counselors. Counseling failed (according to Jessica) because a counselor made derogatory comments about Mother. Most recently Jessica wore headphones during counseling. Mother denied giving her permission to do so. As evinced by Jessica's testimony "there is little hope now that she will ever pursue a familial relationship with [her] father" (Matter of Orange County Dept. of Social Servs. v Meehan, 252 AD2d 588, 590 [2d Dept 1998]).
This Court finds Lori M., Jessica J., most of Father's testimony and portions of Mother's testimony to be credible but finds Mother was insincere and not credible when she testified she never hindered a relationship between Jessica and Father (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage . . . in observ[ing] the demeanor of the witnesses"]; Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see also Boyd v Boyd, 252 NY 422, 429 [1930], rearg denied 253 NY532 [1930]). This Court finds Mother's testimony that she encouraged visits as incredible (see Matter of Danielle S. v Larry R.S., 41 AD3d 1188, 1189 [4th Dept 2007]; Matter of Whitney v Judge, 138 AD3d 1381, 1383 [4th Dept 2016], denying lv to appeal 27 NY3d 911 [2016]; Matter of Tucker v Miller, 138 AD3d 1383, 1384 [4th Dept 2016]) [court's assessment of the credibility of the witnesses is entitled to great weight]. Indeed this Court finds Mothers actions "rise to the level of deliberate frustration of Father's visitation rights" (see Hiross, 224 AD2d 622, 663 [citation omitted]).
This Court finds Mother has subverted Father's visitation with Jessica and finds there is a constant undercurrent from Mother of disapproval of Father which constrains Jessica from enjoying time with her Father. The Court finds Mother has engaged in a pattern of undermining Jessica's relationship with Father so as to require this Court to vacate his support obligation with regards to Jessica only.
NOW, THEREFORE, it is
ORDERED that Petitioner, Edward J. has proven alienation and his modification petition filed June 13, 2016 to decrease support is granted. Father's support obligations are suspended as of the filing of the petition, June 13, 2016; and it is further
ORDERED that this case is remanded to the Support Magistrate for adjustment of child support to be paid by Father on behalf of the parties two younger children: Jenna J. (DOB: —/—/2003) and Jason J. (DOB: —/—/2004).
Dated this 19th day of January, 2017 at Rochester, New York. ___________________________________ HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE